Appeal against conviction for rape. Court upheld conviction based on victim testimony and medical report showing evidence of sexual intercourse. Reduced sentence from 10 years to 5 years considering the familial relationship.
Conviction confirmed. Main sentence reduced from 10 years to 5 years rigorous imprisonment. Fine maintained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941
CRL.A.No.2192 of 2010
AGAINST THE JUDGMENT IN SC 180/2009 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-III), NORTH PARAVUR DATED 26-10-2010
APPELLANT/ACCUSED :
MUHAMMED, S/O MOIDEEN, NJAKKADA VETTILE, MATAKKADU, KURUPPRAMALA BHAGOM, H.M.T.COLONY, KALAMASSERY KARA, THRIKKAKARA NORTH VILLAGE.
BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.MANU TOM SRI.R.ANIL SRI.SHYAM ARAVIND SRI.T.ANILKUMAR SRI.VAKKOM N.VIJAYAN SRI.V.B.SUJESH MENON
RESPONDENT/COMPLAINANT :
STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI SANTHOSH PETER-SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.A.No.2192 of 2010
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JUDGMENT
The appellant herein challenges the conviction and sentence against him under Section 376 of the Indian Penal Code in S.C.No.180 of 2009 of the Court of Session, Ernakulam. He faced trial before the learned Additional Sessions Judge (Adhoc-III), North Paravur, on the allegation that in the evening on 16.09.2008, he committed rape on his own cousin sister at the upstair of her brother's house during a function there in connection with the death anniversary of the victim's father. Though the brother and the other relatives of the victim came to know of the incident on the date of incident itself, they first hesitated to make a complaint for the reason that the accused is a close relative, but later, on 20th, the brother of the victim made a complaint
before the Police. On the said complaint, the Police registered the crime, and after investigation, submitted final report in court.
CRL.A.No.2192 of 2010
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including the victim of offence, and proved Exts. P1 to P14 documents in the trial court. The MO1 to MO6 properties were also identified during trial.
CRL.A.No.2192 of 2010
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the entire materials, including the evidence of the victim, and also the medical evidence given by the doctor who examined her at the hospital after four days, I find no reason to interfere in the finding or the conviction made by the court below under Section 376 IPC. As regards the sentence, things will be discussed later.
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intercourse by the accused. It is immaterial whether the former incidents were with consent or without consent. The court's concern is regarding the incident that happened on 16.09.2008. Anyway, the medical evidence given by PW9 read along with her certificate, and also the Ext.P14 report of chemical analysis would show that when PW9 examined PW2 at the hospital she could find some evidence of recent sexual intercourse, and this was confirmed by the Ext.P14 report. Now the question is who actually subjected the victim to sexual intercourse, or whether it was done by the accused as the prosecution would allege.
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stated that her age is 14 years. An examination of the entire deposition given by the lady would show that there is something wrong with her, though it cannot be said to be mental abnormality or severe retardation. PW1 and PW4 have stated that PW2 is a mentally retarded girl, and that is why she has not so far been given in marriage. The incident happened at her age of 34 years. The accused is the first cousin of the victim, and the incident happened at the house of the victim's brother on the occasion of the death anniversary of the victim's father. The evidence given by the victim is that she was taken upstairs by the accused, and he subjected her to sexual intercourse there. So many questions were asked to the victim regarding the way in which the alleged incident happened. Many of the answers are quite irrelevant as to whether he had actually removed his underwear, or whether she had seen the male organ. The lady is definite that she was subjected to sexual intercourse by the accused by force. Ofcourse, she has stated that on three previous occasions also, she was subjected to intercourse by him. As regards the incident alleged in this case, no definite question was asked as regards consent. Anyway, I find on an appreciation of the entire evidence
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including the whole deposition given by the victim, that she is not fully normal. There is something wrong with her. Both PW1 and PW4 have asserted that she is slightly retarded mentally, and that she had been treated for some time. Just because, there is no medical record to prove the evidence given by the mother and the brother cannot be doubted, especially when the answers given by the victim before the Court would suggest that she is not mentally all right fully. In such a circumstance, it is quite immaterial whether the lady had given consent. She cannot even say what exactly is her age. Once she stated that her age is 34 years, and later she stated that her age is 14 years. The lady has clearly explained what happened to her, or how the accused satiated his lust on her on the upstair of her brother's house. All the near relatives have stated that some small injuries were seen on the lips of the lady just after the incident. Ofcourse, it is true that such injuries were not noted by PW9. She examined PW2 after four days. I find no reason to disbelieve PW2, or to reject the evidence given by PW1 and PW4 regarding the things that transpired immediately after the incident, including the injuries on the lips of PW2, noted by them, and also the statements given by the victim to
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them explaining what happened to her, or that she was sexually ravished by her own first cousin. I find that the prosecution has very well succeeded in proving the offence alleged. When the material evidence is quite acceptable, I feel it not necessary to discuss the other formal evidence including that of the Investigating Officer. There is nothing to show that there was any flaw or irregularity or illegality in the investigation conducted by PW12. I find that the conviction is only to be confirmed in appeal.
CRL.A.No.2192 of 2010
In the result, the conviction against the appellant under Section 376 IPC in S.C.No.180 of 2009 of the Court of Session, Ernakulam is confirmed, and the appeal is disposed of accordingly. However, the substantive sentence imposed by the trial court will stand modified and reduced to rigorous imprisonment for five years. The fine sentence is maintained, with the modification and reduction that the default sentence shall be rigorous imprisonment for six months.
ds/rkj
Sd/- P.UBAID JUDGE
3 issues framed by the court
Whether the appellant is guilty of rape under Section 376 IPC given the medical evidence of sexual intercourse despite the defence claim of consent.
Whether the sentence under Section 376 IPC below the statutory minimum is appropriate considering the relationship between the accused and the victim.
Whether the conviction should be confirmed and the sentence modified in the criminal appeal.
3 provisions across 3 enactments
MUHAMMED, S/O MOIDEEN
STATE OF KERALA
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.UBAID
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